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2010 Supreme(Ker) 152
High Court of Kerala
THE HONOURABLE MR. JUSTICE T.R. RAMACHANDRAN NAIR
Chirayinkeezhu A. Babu
Versus
The Delimitation Commission, Represented by its Secretary, Nirvachan Sadan & Others
WP(C).No.4237 of 2008 (D)
Decided on : 01-03-2010
For the Petitioner:T.P. Kelu Nambiar, Senior Advocate, K.V. Sohan, M.R. Rajesh, Advocates. For the Respondents:R1 to R3 & R5 to R8, Murali Purushothaman, SC, K.S.E. Commn., R9, T.P.M. Ibrahim Khan, Asst.S.G., Siraj Karoly, C.G.C, R4, S.P. Aravindakshan Pillay, N. Santha, S.A. Anand, Peter Jose Christo, R11, G. Ram Mohan, Shinod, G.P., V. Manu, Advocates.
Headnote:
Constitution of India, 1950 - Articles 329(a), 226 - Delimitation Act, 2002 - Section 10(1) - Whether S.10(1) denudes power of Delimitation Commission while the said Commission is in office, to correct an accidental error or omission merely because of order under S.10(1) - Whether Consolidated Order Delimitation of Parliamentary and Assembly Constituencies Order, 2008, has force of law - Whether said order can be challenged under Art.329(a) and can be questioned in Writ Petition under Art.226 of Constitution - Held, S.9 of the Act shows that the Commission shall distribute the seats in the manner provided under the provisions and it should call for objections and suggestions and will have to hold one or more public sittings at such place or places in the State concerned, going by S.9(2)(c) - S.9(2)(d) cannot be said to be attracted in the facts of this case - Consolidated order as provided under S.8 of the Representation of the People Act, 1950 has already been published as per Ext.P5, and as the same has also been published in the same manner as in respect of Ext.P3 by publishing in the Gazette, etc - It is clear that the Chairperson of the Delimitation Commission has informed the Central Government about the accomplishment of the delimitation work by the Commission and intend to demit the office of the Chairperson - Writ Petition Dismissed.
The important question that is raised in this writ petition is with regard to the power of the Delimitation Commission of India to issue a corrigendum notification, after the publication of the order delimiting the Constituencies under Section 10(1) of the Delimitation Act (for short ‘the Act’). It is also contended that the Statute does not confer any such power and the only provision is the one conferring power under Section 11 of the Act on the Election Commission to correct any printing mistake in any order made under Section 9 or any error arising therein by way of inadvertent slip or omission.
2. The bare facts for the disposal of the writ petition are the following: The petitioner is a permanent resident and voter in Chirayinkeezhu Assesmbly Constituency and is a lawyer. Prior to the delimitation of the Constituencies, Chirayinkeezhu Panchayat was part of Attingal Assembly Constituency.
3. After the formation of the Delimitation Commission in terms of the Delimitation Act, 2002, Ext.P2, a proposal for delimitation of the Parliamentary and Assembly Constituencies in the State was published. In the proposal serial No.128 Attingal and serial No.129 Chirayinkeezhu were to be reserved as SC Constituencies. After the consideration of various objections submitted by several voters including the sitting M.L.A. of Attingal, viz. Shri Vakkom B. Purushothaman, the final order was published by the Commission as per Ext.P3. Going by the final order published on 31.5.2005, serial No.129 Chirayinkeezhu Assembly Constituency was removed from the list of SC reserved Constituency and instead serial No.133 Vattiyoorkavu was made as SC reserved Constituency in Thiruvananthapuram District.
4. Ext.P4 is the corrigendum notification issued nearly after three years, viz. on 16.1.2008 whereby the Delimitation Commission ordered that the status of 129 Chirayinkeezhu Assembly Constituency shall be as reserved for Scheduled Castes, ie. 129 Chirayinkeezhu (SC) instead of 133 Vattiyoorkavu (SC) and 133 Vattiyoorkavu (SC) shall be shown as a General Constituency. This is under attack on various grounds, in this writ petition.
5. Heard Shri T.P. Kelu Nambiar, learned Senior Counsel and Shri K.V. Sohan, appearing for the petitioner and Shri Murali Purushothaman, learned Standing Counsel appearing for the respondents.
6. Respondents 2 to 4 are respectively, the Chairman and Members of the Delimitation Commission and the 5th respondent is its Secretary.
7. Shri T.P. Kelu Nambiar, learned Senior Counsel appearing for the petitioner contended that after Ext.P3 final order was passed, the Delimitation Commission has ceased to exist. Section 11 of the Act enables the Election commission to correct any printing mistake in any of the orders made by the Delimitation Commission under Section 9 or any error arising therein from an inadvertent slip or omission. The Delimitation Commission has no power to amend or correct the final order including any printing mistake or any error after the publication of the order under Section 10(1) of the Act. Ext.P3 is the order published by the Delimitation Commission under Section 10(1) of the Act as per the modes provided therein including Official Gazettes and going by sub-section (2), it shall have the force of law and shall not be called in question in any court. The said notification was approved by this Court in the decision in Chief Electoral Officer v. Sunny Joseph (2005) (4) KLT 599) and therefore the Commission cannot tinker with the said order, as is done presently. It is an order passed without jurisdiction as the Commission became functus officio after the publication of Ext.P3 notification. The bar under Article 329(a) of the Constitution of India to challenge in any Court the order issued by the Delimitation Commission under the Act will not apply here. Ext.P4 is totally null and void; it has to be ignored and Ext.P3 therefore has to be declared as valid for all purposes. It is also contended that go
